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75 Tex. L. Rev. 1699 (1996-1997)
Judge and Jury in the Texas Supreme Court

handle is hein.journals/tlr75 and id is 1715 raw text is: Judge and Jury in the Texas Supreme Court
William Powers, Jr.*
There's something happening here. What it is ain't exactly clear.'
There is a perception-an accurate perception-that the Texas Supreme
Court is increasingly willing to overturn jury verdicts in tort cases.2 There
is also a perception-an inaccurate perception-that the court is doing this
by changing the no evidence standard of review.3 In fact, something quite
* Hines H. Baker and Thelma Kelley Baker Chair in Law, The University of Texas School of
Law. I appreciate very helpful comments by David Robertson and David Anderson.
1. BUFFALO SPRINGFIELD, For What It's Worth, on BUFFALO SPRINGFIELD (Atco Records 1967).
2. In several products liability cases the supreme court decided that there was no evidence of
defect. See, e.g., Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 615-16 (Tex. 1996);
Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 384 (Tex. 1995). In several negligence cases the court
decided that there was no evidence of negligence. See, e.g., Juhl v. Airington, 936 S.W.2d 640, 645
(Tex. 1996); Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3-4 (Tex. 1996) (per curiam); Golden
Spread Council, Inc. v. Akins, 926 S.W.2d 287, 290 (Tex. 1996); Johnson County Sheriff's Posse,
Inc. v. Endsley, 926 S.W.2d 284,286-87 (Tex. 1996); Walker v. Harris, 924 S.W.2d 375, 378 (Tex.
1996); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 526-27 (Tex. 1990). In several
insurance claims settlement cases the court decided that there was no evidence of bad faith. See, e.g.,
Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994); American Physicians Ins. Exch.
v. Garcia, 876 S.W.2d 842, 848, 853-55 (Tex. 1994); National Union Fire Ins. Co. v. Dominguez,
873 S.W.2d 373, 376-77 (Tex. 1994); Lyons v. Millers Cas. Ins. Co., 866 S.W.2d 597, 601 (Tex.
1993). In a variety of cases, the court decided that there was no evidence of a proximate or producing
cause. See, e.g., Doe v. Boys Clubs, Inc., 907 S.W.2d 472, 477-78 (Tex. 1995); Union Pump Co.
v. Allbritton, 898 S.W.2d 773, 774, 776 (Tex. 1995); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470,
472 (Tex. 1991); see also Hartsfield v. McRee Ford, Inc., 893 S.W.2d 148, 151 (Tex. App.-Houston
[1st Dist.] 1995, writ denied); Lawson v. B Four Corp., 888 S.W.2d 31, 35 (Tex. App.-Houston [1st
Dist.] 1994, writ denied); Way v. Boy Scouts of Am., 856 S.W.2d 230, 237 (Tex. App.-Dallas 1993,
writ denied); Vineyard v. Kraft, 828 S.W.2d 248, 254 (Tex. App.-Houston [14th Dist.] 1992, writ
denied) (all affirming lower court decisions releasing the defendant from liability based on lack of
proximate cause).
3. Few issues of Texas procedural law have drawn more attention than the respective roles of
judge and jury on questions of fact. Few states define these roles with as much deference to the jury.
A court can properly overturn a jury's finding and enter judgment only if there is no legally sufficient
evidence-that is, only if there is no evidence more than a scintilla to support the verdict. It is not
enough that, given all the evidence, reasonablejurors would not disagree about the outcome. A Texas
court can overturn a jury's finding and order a new trial only if there is no factually sufficient evidence
to support the verdict-that is, only if the evidence taken as a whole so preponderates against the
verdict that a new trial is necessary to avoid injustice. Before a court can order a new trial, it must
satisfy stringent procedural requirements. A basic difference between the two standards of review is
that the test for legal sufficiency looks only at the evidence supporting the verdict, whereas the test for
factual sufficiency looks at evidence on both sides. Beyond this basic difference, the details of these
two standards of review-and which courts have jurisdiction to apply them-are complex, to say the
least. A hallmark of this entire body of law, however, is extraordinary deference to juries. See

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